A SHORT "SHELF LIFE" FOR VALLADOLID'S ELUSIVE SUBSTANTIAL-NEXUS TEST?
TABLE OF CONTENTS I. Introduction 112 II. The Outer Continental Shelf Lands Act: A Brief History 116 A. The 1978 Amendments to OCSLA and the Extension of 43 U.S.C. [section] 1333(b) 119 III. The Longshore and Harbor Workers' Compensation Act 120 A. The Administrative Law Process 122 IV. The Issues and Cases 124 A. The Pre-Valladolid 3 | 5 | 9 Circuit Split Trifecta 125 B. The Valladolid Decision 128 C. The Supreme Court's Repudiation of the Fifth Circuit's Situs-of-Injury Test 130 V. The Post-Valladolid Line of Cases 133 A. Incongruous Results: Baker, Flores, Boudreaux, and Grabert 134 1. Baker 134 2. Flores 139 3. Boudreaux and Grabert 142 VI. Commentary: Refocusing the Statutory Lens 143 VII. Conclusion 147
For more than two decades, three federal appellate courts have split over the interpretation of the breadth of the phrase "as a result of operations conducted on the outer continental shelf contained in 43 U.S.C. [section] 1333(b) of the Outer Continental Shelf Lands Act (OCSLA). (1) The tripartite interpretation arose in the context of determining eligibility status for injured claimants seeking workers compensation benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), (2) as extended by OCSLA. In 2012, however, the U.S. Supreme Court addressed the issue of workers' compensation coverage through OCSLA in Pacific Operators Offshore v. Valladolid: (3) The Court held that coverage under the LHWCA, as extended by OCSLA, is available to a claimant if the injury bears a "substantial nexus" to extraction operations on the Outer Continental Shelf (OCS). (4)
By affirming the Ninth Circuit's decision, the Court adopted a substantial-nexus test--a causation test--whereby if satisfied, "OCSLA, and by extension the LHWCA, provides the workers' compensation remedy for an injured [maritime] worker, even if the injury itself did not occur on the [OCS]." (5) In adopting the substantial-nexus test formulated by the Ninth Circuit, the Court in tandem rejected the too expansive "but-for" test of the Third Circuit (6) as well as the too restrictive "situs-of-injury" requirement of the Fifth Circuit. (7) The Court further rejected a two-pronged variant test advanced by the Solicitor General of the U.S. Department of the Interior, which posited that "an injury is compensable, no matter where it occurs, if there is 'a nexus between OCS operations and the employee's 'work performed' generally."' (8)
By adopting the substantial-nexus test, the Supreme Court appeared to have found the panacea, the "just right" solution to the more than two decade-long dilemma facing the federal appellate courts. The new substantial-nexus test, the Supreme Court noted, was based on a "lack of [any] textual 'situs-of-injury' requirement" found in a plain reading of [section] 1333(b). (9) The test also revealed that while the "operations that caused a worker's injury must have been on the Shelf, the injury itself could occur elsewhere, provided it bore a 'substantial nexus' to shelf operations." (10)
In the six years since the Court's Valladolid decision, a puzzling pattern has now emerged in similar cases for claimants seeking benefits under the LHWCA as extended by OCSLA. Upon closer inspection of subsequent decisions of the Department of Labor's Benefits Review Board and the Fifth Circuit Court of Appeals, specifically the 2016 Fifth Circuit decision Baker v. Gulf Island Marine Fabricators (11) and other recently decided cases, (12) these decisions applying the substantial-nexus test have failed to render any consistency in their results. More significantly, while the meaning of substantial nexus and the application of the substantial-nexus test were to have developed concomitantly over time, these decisions demonstrate, at least in the Fifth Circuit, that the substantial-nexus test and the latitude it grants to administrative law judges and courts to administer it are still in a state of flux, (13) leaving employers, their insurers, and employees flummoxed. While OCSLA extends coverage through the LHWCA to an employee who can establish a substantial nexus between his injury and his employer's extractive operations on the OCS, (14) nothing in the definitions contained in [section] 1333(b) states that the injury must occur on the OCS. (15)
The Valladolid decision was no doubt a turning point in the ongoing Ping-Pong match of the federal appellate courts for determining eligibility of an injured employee's coverage for Longshore benefits under OCSLA. The Supreme Court's holding effectively widened the playing field for workers seeking OCSLA and LHWCA benefits--especially for workers involved in OCS operations in the Fifth Circuit--by concretely and definitively foreclosing any reference to a geographic element requiring the injury to have occurred on the OCS, (16) even when no textual basis for such element could be found in the statute. (17) Despite the substantial-nexus test's usefulness in bringing together the two critical components creating the "nexus", namely, that (1) the work performed directly furthers OCS operations and is in the regular course of such operations, and (2) whether the injured worker's labor furthered shelf operations rather than whether the injury itself was caused by those operations, post-Valladolid litigation has not fostered uniformity in similar decisions, but rather has "add[ed] complexity to the law and litigation to the courts," (18) and has created further uncertainty in an otherwise "already muddled area of law." (19)
The lack of development, uniformity, and understanding of the substantial-nexus test therefore begs the question: has the elusive Valladolid substantial-nexus test reached the end of a short shelf life? If so, is there a more reasonable and workable solution to the otherwise ongoing quandary of extending OCSLA coverage to injured employees as the result of extraction operations conducted on the OCS? If the jurisdictional grant in OCSLA is broadly (and liberally) based (20) and the LHWCA and workers' compensation statutes are to be liberally construed in favor of the claimant, (21) then it follows that a substantial nexus necessarily exists between the work being performed in furtherance of the exploration, development, and/or production of resources on the OCS, and the injury sustained by the claimant on land. And if, as the Supreme Court and the concurring Justices held in Valladolid, the substantial-nexus test best reflects "and is more faithful to the text of [section] 1333(b)" (22) and the Fifth Circuit's situs-of-injury requirement is nonetheless "unmoored from the text of [section] 1333(b)," (23) then it is fair to say that the Fifth Circuit is paying nothing more than lip service to the Supreme Court's precedent by smearing jurisdictional lines through its continued imposition of a geographic-laden, situs-of-injury requirement that the Supreme Court so emphatically rejected in Valladolid.
This comment examines first the historical purpose of OCSLA as well as the 1978 Amendments which codified the current language of coverage for an injury "occurring as the result of operations, conducted on the Outer Continental Shelf." Second, it will further discuss the jurisprudence of the three federal appellate courts regarding the OCSLA coverage prior to Valladolid, while also examining the post-Valladolid line of cases such as Baker, as well as three other administrative law judge cases, Flores, Boudreaux, and Grabert, that have failed to render any uniformity from application of the Supreme Court's precedent. Third, the comment will analyze the Fifth Circuit's ongoing fractured application of the substantial-nexus test, the factual parsing occurring in its decisions, and the "morass of inconsistent standards" (24) rendered in its opinions awarding or denying coverage to injured claimants. Finally, it will conclude with an examination of whether the work or services performed by a claimant in furtherance of the exploration, development, and production of resources on the OCS necessarily creates a substantial nexus, even though the work is performed onshore or elsewhere.
II. THE OUTER CONTINENTAL SHELF LANDS ACT: A BRIEF HISTORY
The modern-day legal concept of the continental shelf is an American idea first adopted by President Truman after World War
II. (25) The purpose of the continental shelf was to advance the United States' [discovery, extraction and] development of natural resources and petroleum beneath the subsoil and seabed lying thereunder. (26) In 1945, President Truman issued a proclamation (27) as well as an executive order (28) asserting the United States' dominion over all of "the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States... ." (29) The Executive Order further placed the resources of the continental shelf under the jurisdiction and control of the Secretary of the Interior, and directed Congress and the Supreme Court to sort out "any issues between the United States and the several states." (30)
Following the President's directive, the Supreme Court began sorting out several issues which arose related to submerged lands and minerals beyond the coasts of several states. In United States v. California, (31) the Supreme Court held that California had no right to any of the submerged lands or minerals beyond its coast line:
California is not the owner of the three-mile marginal belt along its coast . [T]he Federal Government rather than the states has paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under the water area, including oil. (32)
Following on the heels of the California case, the Supreme Court equally concluded similar claims brought by Louisiana and
Texas. (33) As a result of the confusion as to where a state's ownership beyond its coastline ended, and where the Federal Government's ownership began, Congress did its part and enacted the Submerged Lands Act, (34) wherein the Federal Government "ceded to the coastal states its interests in the seabed and natural resources out to three geographical miles from the states' coast lines." (35)
The continental shelf doctrine recognizes that petroleum and other minerals are valuable resources, great quantities of which exist on the continental shelf, and technology has made possible the offshore development of these resources. (36) Various reasons were espoused for justifying the claim by the United States to the resources on its continental shelf, but "the existence of these resources under the continental shelf and the technological feasibility of their exploitation" was the justification proclaimed by President Truman that would ultimately prove crucial in the later developments of OCSLA." (37)
In 1953, Congress enacted the OCSLA . as part of a package of legislation (that also included the Submerged Lands Act...) to provide for federal administration of the exploration, development, and production of OCS mineral resources. (38) Through OCSLA, Congress sought to facilitate the "development and operations [of the OCS] which  [were] vital to  [the country's] national economy and security." (39) OCSLA effectively supplemented the Submerged Lands Act which had been enacted two months prior and whereby the United States ceded to the coastal states the federal government's interests in the seabed and natural resources out to three geographical miles from the states' coast lines. (40)
A. The 1978 Amendments to OCSLA and the Extension of 43 U.S.C. [section] 1333(b)
The OCS has been called "America's best hope for finding additional oil and gas resources and reducing our dependence on foreign oil." (41) After OCSLA's enactment in 1953, with the exception of one amendment in 1976, (42) it remained largely unchanged until the adoption of the Outer Continental Shelf Lands Act Amendments of 1978. (43) The 1978 OCSLA Amendments were "the product of five years of congressional study [which] respond[ed] to four criticisms of the 1953 OCSLA." (44) Although the criticisms were varied, dealing with issues from specific leasing methods for OCS tracts of land, to land-use planning and development of OCS oil and gas resources, one criticism of the 1978 OCSLA Amendments is at the very core of this Comment: the need for inclusion of a provision for "coordination and compensation for injury to other users of the OCS." (4a) While the 1978 OCSLA Amendments involved substantial revision of existing practices and regulation, the amendment did not alter the substantive meaning of section 4 [current [section] 1333(b) of the LHWCA]of the 1953 Act.
This amendment involves no change in existing law. It was not the intent . to alter in any way the existing coverage of the Longshoremen's Act, nor of other remedies... for injury or death. (46)
The 1978 OCSLA Amendments, however, altered OCSLA's structure. Sections 1333(b) and 1333(c) were moved around and redesignated. Section 1333(b) [the original section 4(b)], which provided the basis for federal [district court] jurisdiction over OCS cases and controversies, was deleted. As a consequence, [section] 1333(c) [the original section 4(c)] was redesignated as the new [section] 1333(b). (4)' As a result of these amendments, the current subsection 1333(b) reads as follows:
With respect to disability or death of an employee resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshore and Harbor Workers' Compensation Act. (48)
III. THE LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT (49)
The LHWCA is a federal workers' compensation statute under which longshore workers and other land-based maritime workers may seek benefits for work-related injuries. (50) Similar to state workers' compensation schemes, the LHWCA "provides injured workers or their dependents with a no-fault system of recovery." (51) In the early 1900s, "states began providing no-fault remedies for injured workers against their employers." (52) But these no-fault state compensation systems, insofar as they pertained to coverage for maritime workers, were later struck down by the Supreme Court as unconstitutional. (53) In Southern Pacific Co. v. Jensen, (54) the Court held that the administration of these claims by the states ran contrary to and necessarily undermined the uniformity of maritime law established in the U.S. Constitution. (55) As such, "[a state's] workers' compensation statute could not be constitutionally applied." (56) The effect of the Jensen holding was that longshore workers injured on land could only pursue claims under state workers' compensation law, but those injured seaward of the water's edge--beyond of the famed "Jensen line" * (57)--were precluded from recovering under state compensation systems for injuries suffered outside the water's edge, and in turn were left without any source of workers' compensation. (58) To provide a remedy caused by the loss of coverage under Jensen, Congress enacted the LHWCA, thus creating a no-fault federal workers' compensation scheme for longshore and other maritime workers to replace the state benefits that were otherwise severed by Jensen. (59)
In 1972, Congress enacted amendments to the LHWCA, resulting in several significant changes and achieving several different goals. (60) Among those changes included two critical amendments as to both "status" and "situs [requirements]." (61) First, the 1972 LHWCA Amendments modified the situs requirement by extending the Jensen line "landward" to include various shore structures and facilities commonly utilized in maritime employment. (62) Second, as to the status requirement, only persons "engaged in maritime employment including any longshoreman or other person engaged in longshoring operations" are eligible for LHWCA benefits. (63)
Section 1333(b) of OCSLA, which extends the LHWCA, "adopts the entirety of the LHWCA." (64) As such, [section] 1333(b) sets forth its own coverage requirements. Thus, the "status" and "situs" requirements that control the coverage of the LHWCA of its own force, do not limit LHWCA coverage under OCSLA. (60) Thus, where the "status" provisions make the LHWCA coverage contingent upon maritime employment, [section] 1333(b) rejects such requirement and extends LHWCA coverage to "any injury occurring as the result of operations conducted on the outer Continental Shelf." (66) Likewise, the "situs" provision in the LHWCA, again of its own force, applies in cases "only if the [employee's] disability or death results from an injury occurring upon the navigable waters of the United States [or upon an adjoining pier, etc.]." (6)' Section 1333(b) of OCSLA contains no situs requirement.
A. The Administrative Law Process
The 1972 LHWCA Amendments contained additional changes and inclusions, specifically as to procedures with respect to adjudication of claims for workers' compensation benefits through the administrative law process. Included in the amendments as section 14 was the following:
Section 19(d) of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. [section] 919(d)), is amended to read as follows:
Notwithstanding any other provisions of this chapter, [a]ny such hearing shall be conducted by a administrative law judge . All powers, duties, and responsibilities vested by this chapter, on October 27, 1972 [the date of enactment of the 1972 LHWCA Amendments], in the [former] deputy commissioners with respect to such hearings shall be vested in such administrative law judges. (Emphasis added). (68)
The U.S. Department of Labor (DOL), through its Division of Longshore and Harbor Workers' Compensation (DLHWC), in the Office of Workers' Compensation Programs (OWCP), administers the LHWCA for employees injured, disabled, or killed while "on-the-job." (69) Claims are administered through the OWCP, including formal adjudication before an Administrative Law Judge (ALJ).'[degrees] When a LHWCA claim is disputed, an initial, informal hearing is requested by the claimant through the OWCP district office located in the city or region where the employee resides.' (1) If the claim remains unresolved at the district office level, or the insurer refuses to pay compensation benefits, then the matter is referred to an ALJ who hears the dispute and decides the outcome based on the merits of the case. (72) Once the ALJ hears the dispute and renders a judgment, the judgment may be appealed to the Department of Labor's Benefits Review Board (BRB). (73) The BRB reviews workers' compensation claims and issues decisions in cases arising under the LHWCA. (74) The BRB exercises the appellate review authority for LHWCA disputes previously exercised by the United States District Courts prior to 1973. The BRB can either accept or reject the ALJ's decision. Any decision of the BRB may be further appealed to the United States Courts of Appeals in the circuit in which the injury occurred, and from there to the United States Supreme Court. (7)''
IV. THE ISSUES AND CASES
Following Congress' enactment of the 1978 OCSLA Amendments extending the LHWCA, cases began appearing in several federal appellate courts to address the scope of OCSLA coverage. The cases were "tightly constricted" in one major maritime circuit [the Fifth Circuit] and broadly expansive in... others [namely, the Third and Ninth Circuits].' (6) Although only a few cases in the Third and Ninth Circuits addressed the issue of the newly expanded scope of OCSLA workers' compensation coverage, the Fifth Circuit saw the largest number of cases, given its large maritime docket and proximity to the Gulf of Mexico. (77) The decisions in these cases led a three-way circuit split that endured for more than two decades. While the Third and Ninth Circuits adopted clear tests and precedent for establishing benefits coverage under OCSLA and LHWCA, the cases decided by the Fifth Circuit on the same issue resulted in a "tangled and contradictory line of cases" (78) that remain to the present day.
A. The Pre-Valladolid 3 | 5 | 9 Circuit Split Trifecta
The Third Circuit considered a case of first impression of an OCS worker injured on land. In Curtis v. Schlumberger Offshore Service, Inc., the Court held that OCSLA provided workers' compensation coverage if an employee's injury would not have occurred "but for" the employer's operations on the OCS. (79) Thus, the court awarded benefits to a worker injured in a car crash on a New Jersey parkway while driving to catch a helicopter that was to transport him to an OCS extraction facility where he worked. (80) Although Mr. Curtis had recently completed his regular OCS shift, his employer had called him back to work. (81) The Curtis court considered the plain language of [section] 1333(b), as well as the congressional intent behind the enactment. (82) Following the Fifth Circuit's lead in Barger v. Petroleum Helicopters, Inc. and Stansbury v. Sikorski Aircraft, (83) the court held in Curtis that '"[b]ut for' [employee Curtis's] travelling to the New Era [extraction facilities] for the purpose of conducting 'operations' within [section] 1333(b), [he] would not have sustained injuries in the automobile accident." (84)
During the same period, the Ninth Circuit was faced with addressing the issue of OCSLA and LHWCA coverage in Kaiser Steel Corp. v. Director, Office of Workers' Compensation Programs. (85) The court found that a land-based pipefitter and welder who was injured while working on a platform on the OCS to be an "employee" within the meaning of the OCSLA and thus covered by OCSLA, even though his work was primarily land based. (86) Just as the Third Circuit did in Curtis, the Ninth Circuit in Kaiser also considered the plain language of [section] 1333(b) and the congressional intent behind the statute, and adopted a similar construction. The court noted that:
In the absence of any other limitation on the face of the statute or in the legislative history of the [OCSLA], section 1333(b) should be construed as extending [LHWCA] coverage to all victims of disabling or fatal injuries sustained while working to develop the mineral wealth of the [Outer Continental Shelf] . Nor does the application of [section] 1333(b) turn on whether... the employee is primarily land based." (87)
As will be examined infra, Kaiser, and to a lesser but important extent Curtis, through their interpretation and analysis of the plain language in [section] 1333(b), would prove to be catalysts in the Supreme Court's decision in Valladolid, and the very basis of the substantial-nexus test.
The Fifth Circuit has decided the greatest number of cases addressing the scope of OCSLA coverage, again due to its geographic location to the Gulf of Mexico. (88) Several cases appeared before the court during the 1980s involving workers seeking benefits under the LHWCA, as extended by OSCLA, that did not occur either on the waters above the OCS, or on drilling platforms on the OCS. Two of the first cases, Barger and Stansbury, involved claims for deaths of employees occurring on the high seas. (89) The Fifth Circuit held in Barger that his death resulted from operations conducted on the OCS for extractive purposes. (90) As for Stansbury, the Fifth Circuit found that "his work furthered the rig's operations and was in the regular course of the extractive operations on the OCS." (91) The Fifth Circuit in both cases applied a "but for" test. (92)
A third case, Herb's Welding, Inc. v. Gray, made its way through the ALJ process, the appeals process of the BRB, and on to the Fifth Circuit. (93) The resulting decision by the court, however, would reveal a sudden fundamental but subtle about-face--a paradigm shift--in how the Fifth Circuit would begin addressing claims for OCSLA and LHWCA benefits. Herb's Welding involved a welder [Gray] who was injured on an oil rig on the OCS in Louisiana territorial waters. In rejecting coverage, the Fifth Circuit acknowledged that it had adopted a "but for" causation test previously applied in Barger and Stansbury. (94) However, its decision in Herb's Welding also revealed the first signs of a new element not seen yet in previous decisions--a precursor of what would otherwise become a mainstay in its subsequent decisions: a geographic limitation element to OCSLA's incorporation of the LHWCA. (95)
Following on the heels of the Herb's Welding, Inc. decision, the Fifth Circuit was now presented with a claim for OCSLA workers' compensation benefits for an injury occurring "on land." In Mills v. Dir., OWCP, a panel initially held that a welder injured on land while constructing an offshore oil production platform destined for use on the OCS was covered under OCSLA. (96) However, in a sudden rehearing of the case less than three months after it was decided (the Mills I decision), the Fifth Circuit, sitting en banc, overruled the panel's decision in Mills I. (97) Instead it ruled that [section] 1333(b) provided workers' compensation coverage only to employees who were engaged in extraction activities and "suffer[ed] injury or death on an OCS platform or the waters above the OCS." (98) Through its en banc decision in Mills II, the Fifth Circuit decidedly and officially adopted a situs-of-injury requirement for OCSLA coverage, but with a twist. The new situs requirement not only required that a worker be on a covered situs, it went one step further and contained an additional element--a "plus" factor of sorts--that required the worker to be engaged in extractive operations."
Interestingly, most of the pre-Valladolid cases mentioned above contained some form of a "but for" test for determining workers' compensation coverage under OCSLA. Until Mills II, a situs-of-injury requirement was not found in any case. Furthermore, in a plain language reading of the statute, neither the Third Circuit in Curtis nor the Ninth Circuit in Kaiser found any legislative or other factual support that [section] 1333(b) placed "any nexus, situs or geographic restrictions on claims for injuries in connection with outer continental shelf operations." (100) Curiously too, while the panel in Mills I found no situs of injury restriction on OCSLA and LHWCA claims, it was the en banc court in Mills II that threw out the previous "but-for" test and adopted a situs-of-injury test as its new basis for determining OCSLA and LHWCA coverage. It would take 23 years before the Ninth Circuit presented a case of first impression in 2012, that would resolve completely and finally the circuit split trifecta of the Third, Fifth and Ninth Circuits, and the hodge-podge of coverage tests created by each.
B. The Valladolid Decision
Juan Valladolid was employed as a roustabout--a general laborer--with Pacific Operators Offshore, an oil exploration and extraction company. The company operated drilling platforms on the OCS as well as an onshore crude oil facility. He spent approximately 98% of his time working on one of the company's two offshore drilling platforms on the OCS. The remainder 2% of his time was spent working on land at the company's onshore flocculation facility. While operating a forklift removing scrap metal and transporting it to a central location, the forklift overturned on top of him and crushed him to death. His widow sought LHWCA death benefits under 43 U.S.C. [section] 1333(b) of OCSLA. (101)
The ALJ hearing the case denied the claim because the accident occurred on land and not on the OCS. (102) The BRB affirmed, adopting the situs-of-injury requirement from the Fifth Circuit as the standard used. On appeal the Ninth Circuit reversed, concluding that there was no textual support in [section] 1333(b) for the Fifth Circuit's situs-of-injury requirement, and that while the "operations" that caused a worker's injury must have been on the [OCS], the injury itself could occur elsewhere, provided it bore a "substantial nexus" to OCS operations. (103) The Ninth Circuit further held that the substantial-nexus test "is consistent with the pre-Mills [Mills i] Fifth Circuit interpretation of [section] 1333(b) applied to injuries occurring outside the outer continental shelf." (104) Thus, the Ninth Circuit focused its attention on whether the injured worker's employment furthered shelf operations rather than whether the injury itself was caused by those operations. (100) The Ninth Circuit remanded the case to the ALJ to apply the substantial-nexus test. The Supreme Court granted certiorari directly from the Ninth Circuit's decision ordering remand. (106)
In deciding Valladolid, the Supreme Court agreed with the Ninth Circuit, concluding that it could not ignore the language of [section] 1333(b). (107) The Court agreed that OCSLA's text does not require that injuries actually occur on the OCS, and rejected the Fifth
Circuit's situs-of-injury requirement as unduly restrictive, and that the language of [section] 1333(b) "simply does not support a categorical exclusion of injuries that occur beyond the OCS..." on land or otherwise. (108) As such, the Supreme Court adopted verbatim the substantial-nexus test as devised by the Ninth Circuit. The test required the injured employee "to establish a significant causal link between the injury that he suffered and the employer's on-OCS extractive operations... ." (109)
Finally, although the Court adopted the substantial-nexus test, it also recognized that "whether an employee injured while performing an off-OCS task qualifies... will depend on the individual circumstances of each case." (110) That recognition, however, did not alter in any way the Court's agreement with [section] 1333(b) that injuries can occur off the OCS. Nor was it a license for lower courts to resurrect previously abrogated or discredited tests, such as the Curtis "but-for" test of the Third Circuit, or the Mills II "situs-of-injury" test of the Fifth Circuit. While Justice Scalia concurred with the majority in a separate opinion, he nonetheless criticized the uncertain nature of the substantial-nexus test, and suggested that a proximate cause standard for [section] 1333(b) would be a more "natural alternative." (111) Even so, the Court and Justice Scalia were in lockstep in agreeing that any situs-based formulation read into [section] 1333(b) is entirely "unmoored from the text" of that subsection. (112)
C. The Supreme Court's Repudiation of the Fifth Circuit's Situs-of-injury Test
In Valladolid, the Supreme Court examined four separate interpretations of [section] 1333(b). It rejected the first two interpretations--the "but-for" test of the Third Circuit and the "situs-of-injury" test of the Fifth Circuit--both of which tests were, for many years, at the center of the 3 I 5 | 9 circuit court split trifecta conundrum. The Court also rejected a third "variant test" proffered by the Solicitor General, and instead followed its own mandate that "when the language of the Act is unambiguous, courts must apply the 'plain language' Congress has adopted." (113) Basing its decision on the plain language of the statute ( [section] 1333(b)), the Court consequently affirmed the fourth interpretation of the Ninth Circuit, adopting the substantial-nexus test as the new national standard for addressing the scope of workers' compensation coverage under OCSLA and LHWCA. The Supreme Court offered multiple reasons for its repudiation of the Fifth Circuit's situs-of-injury test in Valladolid, two of which stand shoulders above all others for revealing that the injury does not necessarily have to happen in the same place as its cause. (114)
Repudiation as to Plain Language. While the Court abrogated all previous tests used for determining OCSLA and LHWCA coverage for injured claimants, it scrutinized more closely the situs-of-injury test of the Fifth Circuit before rejecting it. (110) At issue with the situs-of-injury test is that, on plain reading of [section] 1333(b), the statute does not geographically limit OCSLA coverage, as the Fifth Circuit has for decades read into the statute.
Nothing in OCSLA... and (especially) nothing in the Fifth Circuit's tangled and contradictory line of cases following Mills ... offers a clear picture of what the situs requirement for [section] 4(b) [[section] 1333(b)] should be. On the contrary, there are many different candidates, with no apparent principled basis for choosing among them. That is another good reason to interpret OCSLA according to its plain text rather than attempt to insert a requirement not expressly provided by Congress. (116)
Furthermore, the phrase "as the result of conveys no such geographical description or restriction and is further "'fortified' by a comparison of the surrounding structure of the statute." (11)' Five out of six surrounding subsections of [section] 1333(b) impose explicit geographic limitations; however, only [section] 1333(b) omits any reference to geographical description or restriction. (118) Thus, "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (119) Congress did not decisively limit coverage geographically in [section] 1333(b) and as such, the Supreme Court rejected the Mills II "situs-of-injury" test therefor. (120)
Repudiation as to "Double Speak." A second reason the Supreme Court systematically rejected the Fifth Circuit's situs-of-injury requirement, despite that there was no textual support for it within the plain meaning of the statute, is because the Fifth Circuit's efforts to apply the test have created a web of confusion, uncertainty, and disparate outcomes in many of its decisions since its adoption in Mills II. (1,21) While an exhaustive rendition and examination of relevant cases would extend well beyond the limits of this Comment, highlighting a few problematic and confusing cases exemplifying instability in the application of the situs-of-injury test are in fact noteworthy, especially when compared and juxtaposed with the situs standard adopted in Mills II. (22)
For example, in Demette v. Falcon Drilling Co., the Fifth Circuit attempted to specify the situs requirement by devising a list of those locations that would be covered. (123) The court failed, however, to include in its list the very situs location the court so avidly adopted in Mills II, namely "the waters above the OCS ...." (124) In Diamond Offshore Co. u. A&B Builders, Inc., (125) in applying a rule that "seem[ed] to exemplify instability," the court held that an OCS welder injured offshore was not eligible for benefits under [section]  (b) if the semi-submersible drilling rig on which he worked "was 'attached' to and 'erected' on the seabed of the OCS." (126) The court acknowledged the conflict in Demette with its situs-of-injury requirement in Mills II, but nonetheless reasoned away the confusion through double speak by concluding that "the OCSLA situs test is not satisfied merely because [a claimant's] alleged injury occurred on the navigable waters [above] the OCS." (127)
While multiple other examples exist in the Fifth's Circuit grab-bag of skewed decisions in cases applying and interpreting the situs-of-injury test prior to the Supreme Court's substantial-nexus ruling in Valladolid, (128) the inconsistencies seen in the foregoing examples, particularly in Mills II and Demette, are not surprising. Given that OCSLA's [section] 1333(b) contains no geographical limitation, locale restriction, or "situs-of-injury" requirement, it becomes clear upon further examination of the foregoing cases that many of them, but in particular the court in
Mills [II] and Demette, "necessarily made up its (inconsistent) definitions for [section] (b)'s situs requirement out of whole cloth." (129)
V. THE POST-VALLADOLID LINE OF CASES
Following the Supreme Court's decision in Valladolid in 2012, the field was now ripe to test the application of the new national standard. Furthermore, with the "patchwork quilt of decisions" (130) that had come to define the Fifth Circuit's situs-of-injury test prior to 2012, employees, employers, and insured alike were ready for a more reliable standard that, on its most basic level, would function fairly and equitably. Practitioners and ALJs were also ready to see application of a new standard that was juridically more statutorily sound and followed "legislatively prescribed contours." (131)
To date, four cases with factual scenarios involving off-OCS injuries have made their way through the ALJ administrative process and the BRB appeals process. One of those cases has also been further decided by the Fifth Circuit. In reviewing these cases, the issue is whether the substantial-nexus test has produced OCSLA coverage determinations that are clear and reliable, or whether such results have varied as widely and significantly as the now discredited standards examined supra. Thus far, it appears that adjudicators have in most instances "reached varying results even in quite similar factual scenarios." (132) Because of these varying results, the question then becomes whether the substantial-nexus test has reached the end of a short "shelf life."
A. Incongruous Results: Baker, Flores, Boudreaux, and Grabert
James Baker was a marine carpenter employed by Gulf Island Marine Fabricators at its waterside facility in Houma, Louisiana. (133) He injured his back and neck while installing sheet metal during the fabrication of living quarters on land to be incorporated onto the tension leg oil platform (TLP) "Big Foot." (134) His injury occurred 100 yards from a navigable canal. (130) Baker sought compensation benefits for his injury through the LHWCA, as extended by OCSLA. (136) The ALJ denied Baker's claim on the grounds that Big Foot was not a vessel, and thus Baker was not involved in shipbuilding. (137) The ALJ also denied his claim because it lacked a substantial nexus between his work and operations on the OCS. (138) The ALJ found that Baker was not covered under OCSLA because (i) his work occurred on land; (ii) his work involved construction of a housing module for use on an OCS platform that was otherwise identical to those constructed for ships on non-OCS platforms; (3) the platform was not fully constructed at the time of the injury, nor was it conducting extractive operations yet; and (iv) Baker's immediate employer was not engaged in installation of the TLP or extraction operations on the OCS. (139) Baker appealed, and the BRB affirmed the ALJ's conclusion that he did not satisfy the coverage requirements of OCSLA because his onshore work activities were "geographically, temporally and functionally distant from" extraction operations conducted on the OCS. (140) Consequently, the Board affirmed that no substantial nexus to OCS operations existed. (141)
Baker is the first OCSLA and LHWCA case to reach the Fifth Court on appeal requiring application of the Valladolid substantial-nexus test. The issue before the Fifth Circuit in Baker was one of jurisdiction: did Mr. Baker's injury on land come within the coverage of the LHWCA and/or alternatively under OCSLA? (142) Although much of the Fifth Circuit's opinion in Baker focused on whether the TLP was a vessel for purposes of the LHWCA, it nonetheless gave short shrift to and examined Mr. Baker's activities as an employee of Gulf Island, and whether those activities had a sufficiently substantial nexus to OCS operations. (143) Mr. Baker challenged the ALJ's rejection of OCSLA benefits, arguing that he was injured as the result of operations on the OCS while constructing living quarters that would ultimately be integrated into Big Foot, and placed on the OCS. (144) The Fifth Circuit denied Mr. Baker's claim on grounds that "building the living and dining quarters for Big Foot" does not satisfy the fact-specific [substantial-nexus] test. (145) But here is where the court pays lip service to the precedent set by the Supreme Court in Valladolid.
First, the court focused on the situs of Baker's injury, noting that it occurred on dry land. While the Fifth Circuit has a long and checkered history of application of a situs-based, geographic-laden test in similarly-situated cases, the Supreme Court in Valladolid repudiated the Fifth Circuit's situs-of-injury requirement altogether, holding that "[c]ontrary to the view of... the Fifth Circuit, nothing in . [section] 1333(b) suggests that the injury to an employee must occur on the OCS." (146) In other words, "OCSLA's application of LHWCA remedies is not controlled by the geographical location [situs] of the injury." (147)
Second, still focused on a "situs-of-injury" application of the substantial-nexus test, which the Supreme Court so boldly rejected in Valladolid, the Fifth Circuit then likened Baker's job as a marine carpenter to that of an office employee. The court stated that, "[w]hile not an office employee [but similar to an office employee], Baker's job of constructing living and dining quarters is too attenuated from... extracting natural resources from the OCS
. to cover his injury." (148) But this application misses the mark. First and foremost, the substantial-nexus test does not contain a situs-of-injury requirement. Second, the situs-of-injury argument here is not valid, because the LHWCA's expanded coverage through OCSLA includes land-based marine employees on "any pier, wharf, dry dock, terminal, building way... ." (149) Baker's injury occurred 100 yards from a navigable canal. As the BRB held in its Decision and Order, "[t]hat claimant's injury occurred on a covered situs pursuant to 33 U.S.C. [section] 903(a) is not in dispute." (100) Whether Baker was constructing the living modules on the OCS or on land, he was covered under OCSLA.
Third, the court again wove the situs argument back into its analysis, by stating that Baker's job did not require him to go out on the OCS, and therefore he was geographically distant from the OCS. (101) This issue also runs afoul of [section] 1333(b), because it remains connected to the situs-of-injury "carousel" that the Fifth Circuit continues to ride. The court juxtaposes Baker's off-OCS work with that of Valladolid's 98% on-OCS and 2% off-OCS work ratio, as though the Supreme Court adopted the substantial-nexus test based on those on-off OCS work percentages. It did not. The Fifth Circuit misunderstood the contours and application of the substantial-nexus test, and simply reverted to applying "the devil it knows best--the situs-of-injury test." Because [section] 1333(b) contains no geographical or situs component on its face and in its plain language, the Fifth Circuit cannot arbitrarily read it into the statute at will, when the Supreme Court has otherwise precluded it from doing so. "Yet the Fifth Circuit still reads a situs-of-injury requirement into [section] 1333(b), presumably focusing on the language 'operations conducted on the [OCS].'" (152) The Supreme Court repudiated the narrow Fifth Circuit situs-of-injury test, and any reversion by the Fifth Circuit to that overruled requirement pays lips service to the Court, eschews precedent, and creates confusion and uncertainty for claimants, employers, and insurers alike.
Finally, as if to rubber-stamp its affirmation of the ALJ's original holding, the court noted that Baker's employer, Gulf Island, "had no role in moving Big Foot to, installing Big Foot on, or operating Big Foot once placed on the OCS." (153) However, this argument proffered by the Fifth Circuit goes against the great weight of its own case law and precedent on the subject, and thus miscarries. The Fifth Circuit has previously held that the language of 1333(b)(2) does not require the employer of the claimant be engaged in extractive operations on the OCS. (154) Under 1333(b)(2), the term "employer" means "an employer any of whose employees are employed in such operations." (155) As such, "[t]he plain language of the statute does not restrict its application solely to employees whose direct or payroll employer is the entity conducting the extractive operations on the Shelf, and the language is broad enough to... encompass employees of third party contractors... ." (156) We need only look to Barger, supra, for guidance.
In Barger, the Fifth Circuit held as follows:
Barger's employer, Petroleum Helicopters, was not itself engaged in mineral operations . This transportation is an "operation conducted... for the purpose of natural resource development. Helicopter pilots... perform the same function with respect to resource development whether employed directly by a producer or by a separate contractor, and should not be treated differently on the basis of who their immediate employer is. (157)
Thus, [section] 1333(b) does not require that the employee himself be engaged in exploring for and recovering natural resources, nor does it require the employer be engaged in such activities. According to the Valladolid court, "[n]othing in the text of [section] 1333(b) suggests that an injury must occur on the OCS. [It] has only two requirements: the extractive operations must be 'conducted on the [OCS],' and the employee's injury must occur 'as the result of those operations.'" (158) Therefore, the argument the court made as to the status of Baker's employer was, at best, a deflection of well-established precedent in its own court.
Like Baker, Flores was engaged in constructing a component of Chevron's TLP Big Foot. (159) As a licensed electrician, he was injured while working on Big Foot's electrical building module that was tied to a fabrication yard dock and was floating on pontoons in the navigable waters at the dock of the Kiewit yard on Corpus Christi Bay. (160) While he was making inspections of the module, his foot became entangled in cable wiring, was caught under a doorway, and as a result he tore his Achilles tendon. (161) Flores argued in the alternative that his injury was covered by OCSLA because it satisfied the substantial-nexus test. (162) Focusing strictly on Flores' initial LHWCA claim, the ALJ concluded that although Flores was on navigable waters and his presence was not transient or fortuitous, he was not an employee of a "statutory employer" and thus lacked status because he was not a shipbuilder or engaged in maritime employment. (163) Strangely, the ALJ found Flores' electrical work to be as equally disconnected from OCS extraction operations as Baker's housing module construction work, and thus denied coverage. (164) Flores then appealed to the BRB. While on appeal, the Director, OWCP, filed a letter response in support of the claimant, seeking reversal of the ALJ's prior decision on the basis that the ALJ erred in finding that claimant was not covered under the LHWCA. (165) The BRB thereafter ruled that the claimant was in fact covered by the LHWCA at the time of his injury, and reversed and remanded the case to the ALJ. (166)
Interestingly, both Baker and Flores have multiple parallel facts and circumstances that, when juxtaposed, are strikingly aligned, yet with different results. Both claimants' injuries arose from work being performed on the same TLP, Chevron's Big Foot. Baker was constructing dining and living quarters modules on land just 100 yards from a navigable canal, while Flores was working on and inspecting the electrical building module on the TLP as it sat idle at the water's edge. Both claimants sought benefits under the LHWCA, as extended by OCSLA, and both were denied (Flores initially) because they failed to satisfy the substantial-nexus test.
Curiously, however, both failed to satisfy the substantialnexus test for two similar reasons: neither claimant's employer was engaged in extractive operations on the OCS, and their jobs of constructing and working on parts of the TLP were too attenuated and "geographically distant" from OCS extraction operations. (167) A third issue also appeared in both cases--more strongly in Baker but nonetheless present in Flores--a reversion to application of a "situs-of-injury" requirement by the court (in Baker) and the ALJ (in Flores) that the Supreme Court in Valladolid rejected.
As mentioned in Baker, the Fifth Circuit held that his employer, Gulf Marine, would have no role in installing or operating the rig on the OCS. In so holding, the court was effectively imputing an "employer requirement" that was otherwise not part of a requirement of the substantial-nexus test. So too did the ALJ effectively attribute a "statutory employer requirement" to Flores' employer, MMR Constructors. In Flores, the ALJ found that despite OCSLA's broad definition of development, Flores' employer, only a subcontractor, was not engaged in the type of extractive operations as required by Valladolid. But as previously examined in Baker, supra, case law in the Fifth Circuit is on point, and any attempt to go against stare decisis and a well-established precedent is an exercise in futility and serves only to undermine the legal system. Further, imputing an "employer requirement" that requires the statutory or other employer of the claimant to be the very employer who is engaged in the actual extractive operations is a misread altogether of [section] 1333(b).
Second, and more importantly, the plain language in the substantial-nexus test does not require that a claimant's actual, statutory, or otherwise direct employer be engaged in exploring for and recovering natural resources. Nor does it require that the claimant's employer be within the intendment of 43 U.S.C.A. [section] 1333(b)(2). (168) It only requires that "the extractive operations must be 'conducted on the [OCS],' and the employee's injury must occur 'as the result of those operations."' (169) It would therefore seem that the same reasoning should apply to Flores as well as to Baker. Flores' employer was a subcontractor to Kiewit Offshore Services in building Big Foot. (170) Chevron contracted with Kiewit as the general contractor. (171) Claimant performed his inspection work under the contract between Kiewit and his employer. (1,2) Claimant's work, therefore, could not have been "geographically, temporally, and functionally distant" from operations conducted for the purpose of extracting resources from the OCS.
The causal link for Flores is that his injury is directly related to the module on the TLP that will be connected via tendons to the seabed on the OCS. His injury occurred in the development stage of the TLP. Although the TLP is physically not located on the OCS, the substantial nexus is thus already created by the very lease that Chevron secured from the Secretary of the Interior years prior for exploration and discovery of reservoirs located on the OCS, followed by development to ensure that there are sufficient reserves to justify capital expenditures for the TLP's construction, and culminating in production of those resources which is the final stage. All stages necessarily lead to the final one: production; however, development has long since started, especially if the project is at the construction stage of the very platform to be used to develop the field and produce the resources.
The ALJ concluded that there was no causal link between Flores' injury and OCS operations because his employer was "twice removed" from Chevron as a sub-contractor, and thus not directly involved in the extraction process of the minerals from the OCS. (173) This conclusion however, like that in Baker, is not the disconnection that breaks the substantial nexus required between the claimant's injury and the extractive operations on the OCS, but rather the very nexus itself, the fusion of the substantial nexus that solders together, unites, and connects the very injury that occurred with the extractive operations that the claimant is connected to. It is, in effect, the very nexus that is in plain sight, but for its simplicity, is not seen unless an utter parsing of the facts of a case occurs.
3. Boudreaux and Grabert
Finally, a brief mention of two additional post-Valladolid cases shed further light on the confusion and misapplication of the substantial-nexus test. While both cases are not for injuries sustained in connection with construction of oil drilling rig components, Grabert and Boudreaux involve transportation of oilrig workers to the OCS to perform activities essential to natural resource extraction and development. They are significant and worth mentioning, because like Baker and Flores, they are very similar in facts and analyses by the ALJs and the BRB, yet with diverging decisions, and show the extent to which application of the substantial-nexus test has thus far rendered disjointed decisions, furthered uncertainty in what has been an already muddled area of law, and thwarted confidence in the courts and adjudicators who apply it.
Boudreaux worked offshore on oil platforms testing oil tanks for defects. (1,4) He was injured in a car accident en route to a dock for onward transport to an offshore oil platform. (175) The ALJ determined a substantial-nexus existed between his injury and
OCS operations. (176) On appeal, the BRB rejected Boudreaux's employer's "cramped interpretation" of the substantial-nexus test that any OCSLA coverage awarded Boudreaux' should (1) turn on the claimant's activity at the moment of the injury and its relation to extractive operations, not on claimant's job duties and their connection to [OCS operations], (2) only transportation injuries "sustained [by] helicopter or vessel accidents" could satisfy the substantial-nexus, and (3) finding OCSLA coverage for Boudreaux would require reliance on the "but-for" test from the Curtis case, which was abrogated by Valladolid.177 The BRB rejected all arguments made by the employer, and affirmed the ALJ's finding in favor of OCSLA coverage for Boudreaux. The case reveals the uncertainty among the individual players--not just the judiciary--in these cases involving application of the substantial-nexus test.
In Grabert, almost parallel facts led to an opposite conclusion. Grabert was responsible for operating a tong used in the extraction of oil and gas from underground. He also performed other duties relating to the extraction of oil from the OCS. Grabert, like Boudreaux, was en route to work on an oil platform on the OCS, when the car he was riding in slammed into the rear of a stopped vehicle. The ALJ denied benefits, holding [albeit erroneously] that the substantial-nexus test, according to Valladolid, would only be met if an offshore accident directly caused onshore injuries. Like in Boudreaux, the Grabert ALJ reasoned that awarding OCSLA coverage to a worked injured in a car accident on land would be tantamount to adopting the "but-for" causation test from Curtis. The Grabert case is currently pending on appeal to the BRB. The Director also filed a brief requesting that the case be remanded to the ALJ for two significant reasons: (1) to reconsider the issue in Grabert in light of the recent decision in Boudreaux and (2) the ALJ erred in its interpretation of the substantial-nexus test.
VI. COMMENTARY: REFOCUSING THE STATUTORY LENS
The Supreme Court's endorsement and adoption of the Ninth Circuit's substantial-nexus test as a new national standard seemed to, at least on its face, provide a more practical, evenhanded, and even preferred approach to settling the otherwise ongoing and untenable circuit court split trifecta of tests that was at play for more than two decades. "The [new national] standard will make LHWCA coverage through OCSLA more available in the Fifth Circuit than it was under Mills and its situs requirement. This is good news for workers in the Gulf of Mexico OCS oil and gas field." (178) While the substantial-nexus test has indeed made LHWCA and OCSLA coverage more available by providing a workers' compensation remedy for the injured worker on-OCS or off-OCS, unfortunately it has not been all good news for the injured worker seeking compensation remedy in the Fifth Circuit. As seen in many of the foregoing post-Valladolid cases, "[t]he factual scenarios in cases involving off-OCS injuries prior to Valladolid continvie to recur and raise the question whether Valladolid's substantial-nexus test will produce OCSLA coverage determinations that vary as significantly as the now discredited standards." (179) As gleaned from the foregoing four decisions from the Fifth Circuit and ALJs, it appears that the recurrence of preValladolid problems have already surfaced. In fact, Justice Scalia in his dissent in Valladolid may have been the best bellwether for how application of the substantial-nexus test would, at least initially, unfold. "Justice Scalia's criticism of substantial nexus may prove somewhat prescient, because the courts, administrative law judges, and the Benefits Review Board will have to... give meaningful content to the substantial-nexus requirement." (180)
To date, the few post-Valladolid cases that have arisen requiring application of the substantial-nexus test--Baker, Flores, Boudreaux, and Grabert--have all come through the region of the Fifth Circuit. (181) The decisions in these cases have not rendered any kind of consistency, but rather have only fostered confusion and uncertainty. Has then the elusive substantial-nexus test reached its short shelf-life and failed to produce the OCSLA coverage determinations envisioned by both the Ninth Circuit and the Supreme Court? It may be too soon to answer that question, based on only four decisions handed down since its adoption. The inconsistent, confusing, and convoluted analyses of those four decisions, however, do support a pattern of misunderstanding and misapplication of the substantial-nexus test by ALJs, the BRB, and the Fifth Circuit alike, all of whom seem to "prefer the devil they know in a situs-of-injury requirement to the devil of the substantial-nexus test." The Fifth Circuit is therefore not off to a promising start in applying the test.
In the post-Valladolid cases, misunderstanding and misapplication of the substantial-nexus test seem to be the recurring themes. What should have been a focus on the plain reading of [section] 1333(b) and its requirements, namely that extractive operations be conducted on the OCS and that claimant's injury must occur "as a result of those operations", have turned into a morass of factual parsing of irrelevant information and/or discredited standards that are neither required by nor contained in [section] 1333(b) or the substantial nexus test itself. So far, the Fifth Circuit and the ALJs are, in essence, avoiding application of a viable test for the employer, the insurer, and the claimant that could otherwise satisfy what the substantial nexus is beyond a geographic test. Their insistence on a continued reversion to and inclusion of a situs-of-injury requirement in deciding LHWCA and OCSLA cases, even in a post-Valladolid world, is "add[ing] complexity to the law and litigation to the courts," as well as muddying the already putrid waters surrounding this issue. Any efforts to limit where the injury could occur was otherwise removed by Valladolid, so long as there was a "substantial" nexus between the injury and the extractive operations on the OCS. The national standard--the substantial-nexus test--with its non-geographic plain language, is thus in lockstep with the plain, non-geographic language of [section] 1333(b).
Refocusing the Statutory Lens. Turning now to potentially redefining the standard, it is essential to refocus the lens on the plain language of [section] 1333(b), and the plain language of the substantial-nexus test, as articulated by the Supreme Court, while at the same time considering the big picture of extraction operations on the OCS. As a baseline, if the work performed by an employee is in the exploration, development, and production of the natural resources on the OCS, then that work should constitute a substantial nexus between the work and the ensuing injury, whether on-OCS or off-OCS, regardless of the stage of exploration, development, and/or production the work is in. To be certain, OCSLA identifies and defines exploration, development, and production very specifically as follows:
(k) The term "exploration" means the process of searching for minerals . to delineate any reservoir . to enable the lessee to determine whether to proceed with development and production;
(1) The term "development" means those activities which take place following discovery of minerals in paying quantities,... platform construction, and operation of all onshore support facilities... for the purpose of ultimately producing the minerals discovered; [and]
(m) The term "production" means those activities which take place after... removal of minerals, including... field operations, transfer of minerals to shore, operation monitoring, maintenance, and work-over drilling. (182)
Since any work involving the exploration, development, or production of natural resources is explicit in and at the very core of [section] 1333(b) for compensation to be to be payable under OCSLA, it is therefore true that if at any stage of the exploration, development, or production process of those resources an employee is injured as a result of operations conducted on the OCS for those purposes, then he is equally covered under OCSLA. It is essential to highlight the basic definitions of the exploration, development, and production process, because the Fifth Circuit continues to base its arguments, analyses, and decisions on issues that distort or directly contravene those statutory definitions. Returning to Baker and Flores, the court in Baker held that his "job of constructing living and dining quarters [was] too attenuated from Big Foot's future purpose of exacting natural resources from the OCS for the OCSLA to cover his injury." (183) In Flores, the ALJ found Flores' electrical inspection work to be equally as disconnected from OCS extraction (production) operations, and that Flores' employer did not conduct any (production) operations at all. (184)
In considering the Fifth Circuit holding in Baker and the ALJ's finding in Flores examined under a refocused, plain language lens of both [section] 1333(b) as well as the [section] 1331 definitions of exploration, development and production, it is easy to see the distortions and confusion in the outcomes of these cases. In Baker, the court effectively held that because Big Foot is not already out on the OCS, then there's no coverage for the injured employee at present. Such a holding, however, does not comport with the plain language of [section] 1333(b), nor the definition of "development" in [section] 1331(1). The court's holding is misguided, and based on a "future action" that must happen before coverage "kicks in." (180) What is hidden in plain sight from the Fifth Circuit, however, is the bigger picture: the future action of the TLP being placed on the OCS does not have to occur before coverage through OCSLA can begin for an injured claimant. The "future action" that the court speaks of where development is in progress has been occurring (usually) years before that point, from the lease of the OCS drilling area, to the exploration and discovery of reservoirs, and then on to development. The production phase may not begin until the TLP reaches the OCS, but neither [section] 1333(b), the definition of [section] 1331(1), nor the substantial-nexus test require the third stage--the production stage--in the "E-D-P process" to be already underway before a claimant can recover under OCSLA. The court here is placing a timing mechanism on when coverage for an injured employee kicks in, and nowhere in the plain language of the statute is a timing mechanism required. Again, much like the Fifth Circuit reading a situs-of-injury into [section] 1333(b), this is merely another case of the Fifth Circuit endeavoring to fit a square peg into a round hole.
The adoption of the substantial-nexus test signaled what appeared to be a "just right" resolution to the 3 | 5 | 9 circuit split trifecta that endured for more than two decades. On its face, the tenets of the substantial-nexus test appeared to construe both liberally and broadly the LHWCA, as extended by OCSLA, as well OCSLA jurisdiction itself, in favor of coverage, as stated by the Supreme Court and Congress. It wholly rejected the cumbersome, unmanageable, and uncertain Fifth Circuit situs-of-injury test, as well as the catch-all "but-for" test of the Third Circuit, for a more equitable, streamlined, and practical test on which employers, insureds, and employees alike could understand and rely.
But over the course of the past six years since its adoption, the Fifth Circuit, the ALJs and the BRB appear to be no further along in understanding the substantial-nexus test and applying its principles than they were prior to it becoming the national standard. The factual scenarios in cases involving off-OCS injuries post-Valladolid have continued to recur and produce OCSLA coverage determinations that vary just as wildly and significantly as the discredited standards of the Third and Fifth Circuits. Thus, this does not bode well for the employers, insureds and employees who are further injured by disparate or confusing decisions handed down by the courts and the administrative law judges who have chosen to avoid the edict of the Supreme Court and the plain language of the statute and the substantial-nexus test. This leads to unnecessary and, in some cases, protracted litigation that could otherwise be avoided by the courts in a plain reading of the statute.
Nonetheless, while the substantial-nexus test has not rendered consistent results, it is not due to lack of clarity in the test itself. Rather, it is the courts and the administrative law judges who fail to consider the plain language of the statute, apply the statute accordingly, and thus pay lip service to the precedent established by the Supreme Court, and insist on applying a discredited test to cases requiring the application of the substantial-nexus test. With their overwhelming failure to apply the plain language of the statute, its definitions, and the substantial-nexus test to the cases before them, the Fifth Circuit, the ALJs and the BRB continue to miss the opportunity to liberally construe the OCSLA and its jurisdiction in favor of coverage, opting rather for a narrow application of an already rejected situsof-injury test that keeps the cycle of OCSLA coverage litigation rolling. Until the Fifth Circuit, the ALJs and the BRB conclude that [section] 1333(b) does not contain a situs-of-injury requirement for recovery, and that the substantial-nexus test provides the most evenhanded approach to an equitable solution for all parties, then the factual parsing and procedural morass will continue.
William L. Pardue (*)
(*) J.D. Candidate 2019, Loyola Maritime Law Journal Candidate 2017, Loyola University New Orleans College of Law; M.A. 1998, Rice University; B.A. 1993, Brigham Young University. The author would like to thank Jeffrey P. Briscoe, Esq. for his guidance and support during the research and writing of this Comment.
(1) 43 U.S.C.A. [section] 1333(b).
(2) 33 U.S.C.A. [section] 901 et seq. (2006).
(3) 565 U.S. 207 (2012).
(4) Thomas C. Galligan, Jr., OCSLA, the LHWCA, Pacific Operators Offshore, LLP v. Valladolid, and the New Substantial-Nexus Requirement. 37 TUL. MAR. L.J. 45, 45 (2012).
(5) Mark A. Reinhalter, OCSLA Coverage Post-the Supreme Court's Decision in Valladolid, LEXISNEXIS LEGAL NEWS ROOM (May 20, 2016, 11:44 AM), https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2016/05/20/ocsla-coverage-post-the-supreme-court-s-decision-in-valladolid.aspx.
(6) In Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805, 811 (3d Cir. 1988), the Third Circuit established a "but for" causation test for determining the scope of OCSLA coverage, holding that "an employee injured in a car accident while on his way to meet a helicopter that would take him to an offshore platform [on the OCS] was eligible for OCSLA disability benefits." Valladolid v. Pac. Operators Offshore, 604 F.3d 1126, 1130 (9th Cir. 2010) (citing Curtis).
(7) In Mills v. Dir., OWCP, 877 F.2d 356 (5th Cir. 1989) (en banc), "the Fifth Circuit adopted a 'situs-of-injury' requirement for OCSLA claims... [wherein] an OCSLA claimant must show that the injury occurred on an [OCS] platform or on the waters above the [OCS]." As such, "a welder injured during the onshore construction of a platform destined for the outer continental shelf was not eligible for OCSLA disability benefits." Valladolid v. Pac. Operators Offshore, 604 F.3d 1126, 1131 (9th Cir. 2010) (citing Mills).
(8) Reply Brief for Petitioners at 4, Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207 (2012) (No. 10-507), 2011 WL 220694, at *3-4. The "variant test" posited by the Solicitor General is a quasi-combination of both the Third and Fifth Circuits' "but for" and "situs-of-injury" tests, respectively. See also supra text accompanying notes 6 and 7.
(9) Valladolid, 565 U.S. at 222.
(10) Valladolid, 604 F.3d at 1139.
(11) 834 F.3d 542 (5th Cir. 2016).
(12) Although the focus of this essay is on Baker, three other cases decided by the BRB, namely Flores v. MMR Constructors, Inc., OALJ Case No. 2014-LHC-1453 (2015), BRB No. 2016-0133, Boudreaux v. Owensby & Kritikos, Inc., BRB No. 15-0117, 49 BRBS 83 (2015), 2015 WL 9606397 (Dec. 21, 2015), and Grabert v. Besco Tubular Services, Co., OALJ Case No. 2015-LHC-0925 (2015), BRB No. 2016-0140, will be examined to show the morass of confusion and inconsistent results in the application of the Valladolid substantial-nexus test to date.
(13) See Valladolid, 565 U.S. at 222-23 (Scalia, A. and Alito, S., concurring).
(14) Under 43 U.S.C.A [section]1333(b), extractive operations include exploration, development and production on the OCS.
(15) See Valladolid, 565 U.S. at 215.
(16) The Supreme Court's finding in Valladolid that the OCSLA provisions extending the LHWCA's coverage did not require the injury to have occurred on the OCS in effect abrogated the conflicting decisions in Mills II ("situs-of-injury" test) and Curtis ("but for" test). See supra text accompanying notes 6 and 7.
(17) 43 U.S.C.A. [section] 1333(b). "Nothing in the text of [section] 1333(b) suggests that an injury must occur on the OCS. The provision has only two requirements: The extractive operations must be 'conducted on the [OCS],' and the employee's injury must occur 'as the result of those operations." Valladolid, 565 U.S. at 682 (emphasis added).
(18) Valladolid, 565 U.S. at 226 (Scalia, A. and Alito, S. concurrence).
(19) Valladolid, 2011 WL 220694, at *4.
(20) Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir. 2013).
(21) THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW [section] 5-2, at 328 (4th ed. 2001).
(22) Valladolid, 565 U.S. at 222.
(23) Id. at 223.
(24) Brief for Respondent Luisa L. Valladolid at 19. Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207 (2012) (No. 10-507), 2011 WL 3873255, at *20 [hereinafter Respondent Luisa Valladolid's Brief].
(25) See Robert B. Krueger, The Background of the Doctrine of the Continental Shelf and the Outer Continental Shelf Lands Act, 10 Nat. Resources J. 442, 450 (1970).
(26) G. Kevin Jones, The Development of Outer Continental Shelf Energy Resources, 11 PEPP. L. REV. 9, 28 (1983).
(27) Proclamation No. 2667, 10 Fed. Reg. 12,303 (1945).
(28) Exec. Order No. 9633, 10 Fed. Reg. 12,305, 1945 WL 3400 (Sept. 28, 1945) [hereinafter Executive Order].
(30) David W. Robertson, The Outer Continental Shelf Lands Act's Provisions on Jurisdiction, Remedies, and Choice of Law: Correcting the Fifth Circuit's Mistakes, 38 J. MAR. L. & COM. 487, 494 (2007).
(31) United States v. California, 332 U.S. 19, 38-39 (1947).
(32) Robertson, supra note 30, at 494.
(33) United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 399 U.S. 707 (1950).
(34) 43 U.S.C. [section][section] 1301-1315 (1994).
(35) Robertson, supra note 30, at 495. Also, a proviso in the Submerged Lands Act holds that "state waters may extend beyond [the three-geographical-mile limit] if such boundary existed at the time the state became a member of the Union. Robertson, supra note 30, at 495 n.42. As such, Texas and Florida each enjoy a nine-mile grant from shore, by virtue of their historical claims recognized upon their admission to the Union in 1845 and 1868, respectively). Robertson, supra note 30, at 495 n.42.
(36) Jones, supra note 26, at 33.
(37) Jones, supra note 26, at 28.
(38) Respondent Luisa Valladolid's Brief, supra note 24, at *7.
(39) H.R. Rep. No. 83-413 (1953), reprinted in 1953 U.S.C.C.A.N. 2177, 2178, 1953 WL 3152. See also Respondent Luisa Valladolid's Brief, supra note 24, at *8.
(40) See Submerged Lands Act [section][section] 2(a)(2), 4, 43 U.S.C. [section][section] 1301(a)(2), 1312; see also Robertson, supra note 30, at 495. It bears mentioning that OCSLA's purpose was "to amend the Submerged Lands Act in order that the area in the outer Continental Shelf beyond boundaries of the States may be leased and developed by the Federal Government." As such, the Federal Government has jurisdiction over the OCS.
(41) Robert B. Krueger and Louis H. Singer, An Analysis of the Outer Continental Shelf Lands Act Amendments of 1978, 19 NAT. RESOURCES J. 909, 909 (1979).
(42) In 1976. a minor amendment was made to clarify The Deepwater Port Act... declaring that the state laws applicable to OCS activities are those currently in force in the respective states [as of the 1976 amendment], rather than those which were in force as of the effective date of the 1953 act. Krueger & Singer, supra note 41, at 910 n.7.
(43) 43 U.S.C.A. [section][section] 1331-1334. While there were multiple amendments contained within the 1978 OCSLA Amendments, focus for purposes of this Comment will be specifically on the amendments to [section][section] 1331-1334.
(44) Jones, supra note 26, at 47.
(45) Jones, supra note 26, at 47.
(46) See H.R. Rep. No. 95-1474 (1978), as reprinted in 1978 U.S.C.C.A.N. 1674, 1680, 1978 WL 8696 ("[t]his amendment involves no change in existing law. It was not the intent . to alter in any way the existing coverage of the [LHWCA]"). See generally Curtis v. Schlumberger Offshore Serv., Inc., 849 F.2d 805, 809 (3d Cir. 1988).
(47) Joseph M. Perez, To Be or Not to Be, A Situs Requirement Under the Outer Continental Shelf Lands Act: Mills v. Director, Office of Worker's Compensation Program, 12 GEO. MASON U. L. REV. 383, 385 (1990).
(48) 43 U.S.C.A. [section] 1333(b) (emphasis added); see also Joseph M. Perez, supra note 47. at 385 n.20.
(49) The term "Longshore" was substituted for "Longshoremen's" by amendment in 1984, and thus the Act was renamed as the "Longshore and Harbor Workers' Compensation Act," Pub. L. No. 98-426, [section] 27(d)(1), 98 Stat. 1639, 1654 (1984).
(50) See generally 33 U.S.C. [section][section] 901-950.
(51) Respondent Luisa Valladolid's Brief, supra note 24, at *3; see also Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 485 (1992).
(52) Aimee P. Kullman, Expanding the Scope of Navigable Waters under the LHWCA: Kollias v. D & G Marine Maintenance. 19 TUL. MAK. L.J. 189, 190 (1994).
(53) Kullman. supra note 52, at 190.
(54) 244 U.S. 205 (1917).
(55) See Jensen, 244 U.S. at 215 (holding that the Constitution extends federal judicial power to "all Cases of admiralty and maritime jurisdiction"); U.S. CONST, art. III, [section] 2.
(56) Thomas J. Schoenbaum, ADMIRALTY AND MARITIME LAW [section] 7-1, at 400 (4th ed. 2001).
(57) See Dir., OWCP v. Perini N. River Assocs., 459 U.S. 297, 306 n. 14, 1983 AMC 609, 616 n. 14 (1983) (noting the "Jensen line" is known as the line of demarcation between land and water that determined coverage under the LHWCA); Id.
(58) Respondent Luisa Valladolid's Brief, supra note 24, at *4.
(59) See Chandris, Inc. v. Latsis, 515 U.S. 347, 356-57 (1995).
(60) Kullman, supra note 52, at 192.
(61) Thomas J. Schoenbaum, ADMIRALTY AND MARITIME LAW [section] 7-2, at 401 (4th cd. 2001).
(62) Perini, 459 U.S. at 313-14. The 1972 amendments to the LHWCA expanded coverage to include "any adjoining pier, wharf, dry dock, terminal, building way. marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel." 33 U.S.C.A. [section] 903(a)"; see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 263 (1977).
(63) Respondent Luisa Valladolid's Brief, supra note 24, at *7.
(64) Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1352 (5th Cir. 1980).
(65) See Robertson, supra note 30, at 514. "Section 1333(b) adopts the Longshore and Harbor Workers' Compensation Act as the workers' compensation regime for injuries resulting from outer Shelf mineral operations. It substitutes its own coverage-delimiting provisions for those of the Longshore Act."
(66) Id. at 515.
(68) Barthelemy v. J. Ray McDermott & Co., 537 F.2d 168, 169 (5th Cir. 1976), citing 33 U.S.C.A. [section] 919(d).
(69) The American Equity Underwriters, Inc., Office of Administrative Law Judges (OALJ), Part I, LONGSHORE INSIDER (Aug. 5, 2014), https://www.amequity.com/longshore-insidcr/article/office-of-administrative-law-judges-(oalj)-part-one (last visited Mar. 13, 2018). In addition, the DOL, through the DLHWC and the OWCP, also administer the various extensions of the LHWCA, including the Defense Base Act, 42 U.S.C. [section] 1651 et seq.; OCSLA, 43 U.S.C. [section] 1331 et seq.; and Nonappropriated Fund Instrumentalities Act, 5 U.S.C. [section]8171 et seq.
(70) See 33 U.S.C.A. [section][section] 901, 919.
(71) The informal conference is used to establish the facts in each case, define the disputed issues and the positions of the parties in respect to those issues, and encourage voluntary resolution by means of agreements and/or compromise. U.S. Dep't of Labor. Annual Rep. to the Congress (2013. 2014 and 2015), OFFICE OF WORKERS' COMPENSATION PROGRAMS, at 18, https://www.dol.gov/owcp/AnnualReportOWCPFY201320142015.pdf (last visited Mar. 20, 2018).
(72) See id.
(74) See 33 U.S.C.A. [section] 901 et seq. Additionally, the BRB reviews and issues decisions for the various extensions of the LHWCA, including OCSLA, 43 U.S.C. [section] 1331 et seq.; Defense Base Act, 42 U.S.C. [section] 1651 et seq.; Non-appropriated Fund Instrumentalities Act, 5 U.S.C. [section] 8171 et seq.; and War Hazards Compensation Act, 42 U.S.C. [section] 1701 et. seq.
(75) 33 U.S.C.A. [section] 921(c); see also U.S. DEPT. OF LABOR, Benefits Review Board, DOL APPEALS, https://www.dol.gov/appeals/LHC claimants.htm (last visited Mar. 20, 2018).
(76) Thomas C. Fitzhugh III, Who is Covered? Recent Cases Regarding Longshore Situs and Status, 16 U.S.F. MAR. L.J. 265, 266 (2003).
(77) Mark A. Reinhalter, OCSLA Coverage Post-the Supreme Court's Decision in Valladolid, LEXISNEXIS LEGAL NEWS ROOM (May 20, 2016), https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2016/05/20/ocsla-coverage-post-the-supreme-court-s-decision-in-valladolid.aspx.
(78) Respondent Luisa Valladolid's Brief, supra note 24, at *29.
(79) 849 F.2d 805, 811 (3d Cir. 1988); See also supra text accompanying note 6.
(80) Id. at 806.
(82) Id. at 808.
(83) Barger v. Petroleum Helicopters, Inc., 692 F.2d 337 (5th Cir. 1982); Stansbury v. Sikorski Aircraft, 681 F.2d 948 (5th Cir. 1982). Both Barger and Stansbury involved helicopter crashes that occurred on the high seas over the OCS.
(84) Curtis, 849 F. 2d at 811.
(85) 812 F.2d 518 (9th Cir. 1987).
(86) Id. at 521-22.
(87) Id. at 522.
(88) See Reinhalter, supra note 77.
(89) See generally Barger v. Petroleum Helicopters, Inc., 692 F.2d 337 (5th Cir. 1982) (employee helicopter pilot killed while transporting workers to offshore rig located on the OCS); Stansbury v. Sikorski Aircraft, 681 F.2d 948 (5th Cir. 1982) (employee killed in helicopter crash while returning from inspection of employer's offshore rig).
(90) Barger, 692 F.2d at 340.
(91) Stansbury, 681 F.2d at 951.
(92) See Barger, 692 F.2d at 340.
(93) See generally Herb's Welding, Inc. v. Gray, 766 F.2d 898 (5th Cir. 1985) (noting that this case was heard previously by the Supreme Court regarding OCSLA/LHWCA coverage for Gray. Herb's Welding, Inc. v. Gray, 470 U.S. 414 (1985). The Supreme Court found that injured claimant was not entitled to coverage, and such holding necessitated the case at bar). See Reinhalter, supra note 77 n.3.
(94) See Reinhalter, supra note 77.
(95) Galligan, supra note 4, at 51. In Herb's Welding, the Fifth Circuit did not explicitly invoke a situs-of-injury requirement for claimants seeking benefits under OCSLA/LHWCA; however, as will be gleaned from the court's decision in Mills v. Dir., OWCP, 877 F.2d 356 (5th Cir. 1989), infra, Herb's Welding was nonetheless a precursor, a "legal harbinger" of sorts that would be an influence in the situs-of-injury requirement that has persisted in the Fifth Circuit through the present, even long after the advent of the Valladolid substantial-nexus test.
(96) See Mills v. Dir., Officer of Workers' Comp. Programs, U.S. Dep't of Labor, 846 F.2d 1013 (5th Cir. 1988) [hereinafter Mills I].
(97) See Mills v. Dir., OWCP, 877 F.2d 356, 362 (5th Cir. 1989) (en banc) [hereinafter Mills II\.
(98) Id. at 362.
(99) Id. See also Pickett v. Petroleum Helicopters, Inc., 266 F.3d 366, 368 (5th Cir. 2001) (denying OCSLA compensation benefits to victim of helicopter crash over land because the Mills II situs-of-injury [plus] test not satisfied) (emphasis added).
(100) See Curtis, 849 F.2d at 809; Kaiser, 812 F.2d 518 at 522 (stating that applicability of [section] 1333(b) does not turn on land-based [situs] employee).
(101) See Pacific Operators Offshore v. Valladolid, 565 U.S. 207, 210 (2012).
(102) Mat 211.
(104) Nations v. Morris, 483 F.2d 577 (5th Cir. 1973) (noting that OCSLA, in its incorporation of the LHWCA, did not speak in terms of injuries occurring on such platforms so as to distinguish them [the injuries] from those off the platforms).
(105) See Reinhalter, supra note 77.
(106) Pac. Operators Offshore v. Valladolid, 565 U.S. 207, 211 (2012).
(107) Valladolid, 565 U.S. at 207, 221, 223.
(108) Id. at 220.
(109) Id. at 222.
(110) See Reinhalter, supra note 77.
(111) Valladolid, 565 U.S. at 226.
(112) Id. at 223.
(113) Fitzhugh, supra note 76. at 266 n.4 (citing Dir., OWCA v. Greenwich Collieries, 512 U.S. 267 (1994) and INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (noting that when the plain meaning of the statute settles the question, a court should not look at "other sources" to determine if there is any language that could call into question Congress' clearly expressed intent)). Accord Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254-54 (1992) ("a legislature says in a statute what it means and means in a statute what it says there") and Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) ([s]tatutory interpretation "begins with the plain language of the statute.").
(114) See Galligan, supra note 4, at 50.
(115) Because the Fifth Circuit decides the greatest number of maritime cases, its situs-of-injury test has been applied to more cases than any other federal appellate court. Thus, the Court thoroughly examined the situs-of-injury test in Valladolid before repudiating it. See Reinhalter, supra note 77; see also Valladolid, 565 U.S. at 207.
(116) Respondent Luisa Valladolid's Brief, supra note 24, at *29.
(117) Id. at*25
(118) Id. at *26
(119) Id. at *25 (citing Russello v. United States, 464 U.S. 16. 22-23 (1983)).
(120) See Boudreaux v. Owensby & Kritikos, Inc., BRB No. 15-0117. 2015 WL 9606397, at*3 (Dec. 2015).
(121) Respondent Luisa Valladolid's Brief, supra note 24, at *30-31.
(122) Respondent L. Valladolid's Brief, supra note 24, at *31 (noting that Mills declared that [section] 1333(b) extended coverage only to workers injured "on an OCS platform or the waters above the OCS," even though the term "platform" never appears in [section] 1333, and none of the several situs definitions in [section] 1333 includes "the waters above the OCS").
(123) 280 F.3d 492, 496 (5th Cir. 2002), overruled in part by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 788, 788 n.8 (5th Cir. 2009) (en banc).
(124) Respondent Luisa Valladolid's Brief, supra note 24, at *31. Interestingly too, even though the Fifth Circuit defined its situs-of-injury test in Mills II as requiring that an injury occur either "on an OCS platform" or "on the waters above the OCS," it did not overrule Stansbury or Barger, the helicopter crashes, neither of which occurred on an OCS platform or on the waters above the OCS. Mills II. 877 F.2d at 361-62.
(125) 302 F.3d 531 (5th Cir. 2002), overruled in part by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 788. 788 n.8 (5th Cir. 2009) (en banc).
(126) Respondent L. Valladolid's Brief, supra note 24, at *32.
(127) Id. (citing Diamond Offshore Co. v. A&B Buildings. Inc., 302 F.3d 543). Compare Diamond Offshore Co. v. A&B Buildings, Inc., 302 F.3d 543 and Becker v. Tidewater, Inc., 586 F.3d 358, 367 (5th Cir. 2009) (recognizing that some of the Fifth Circuit cases... suggest... that more is required to satisfy the situs requirement) with Mills v. Dir., OWCP, 877 F.2d 356, 362 (5th Cir. 1989) (holding that [section] 1333(b) provide[s] coverage only to employees who [are] engaged in extractive activities and suffer... injury or death [i] on an OCS platform or [ii] the waters above the OCS).
(128) Other significant pre-Valladolid Fifth Circuit cases that have resulted in similarly disparate outcomes over the skewed application and interpretation of the situs-of-injury test include, but are not limited to Herb's Welding, Inc. v. Gray, 470 U.S. 414 (1985), Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), and Becker v. Tidewater, Inc., 586 F.3d 358, 367 (5th Cir. 2009).
(129) Respondent Luisa Valladolid's Brief, supra note 24, at *33.
(130) Fitzhugh, supra note 76, at 318.
(131) See Brief for the Federal Respondent Directors of the Department of Labor's Office of Workers' Compensation Programs (OWCP) at 31 n.10. Pacific Operators Offshore v. Valladolid, 565 U.S. 207 (2012) (No. 10-507), 2011 WL 3873254, at *31 n.10.
(132) Reinhalter, supra note 77.
(133) Baker v. Dir., OWCP, 834 F.3d 542, 544 (5th Cir. 2016).
(134) Id. TLPs are a type of offshore oil platform used for deep water drilling. They are anchored to the sea floor by multiple tendons where the serve the life of the well. They are constructed in stages, and assembled in stages. Big Foot's hull was constructed in Korea and transported to Texas where Gulf Marine fabricated its operations modules. Those modules, including the housing module Baker constructed, were integrated with the hull. After assembly, Big Foot was towed out to the OCS. Reinhalter, supra note 77, n.8.
(135) Appellant's Brief Filed on Behalf of James Baker, Jr. at 11, Baker v. Dir., OWCP, 834 F.3d 542 (5th Cir. 2016) (No. 15-60634), 2015 WL 8768073, at *11 [hereinafter Appellant Baker's Brief].
(136) Baker, 834 F.3d at 544.
(137) Id. at 545.
(139) See Baker v. Gulf Island Marine Fabricators, 49 BRBS 45 (2015), 2015 WL 4873133, at *6 (July 14, 2015).
(142) Appellant Baker's Brief, supra note 135, at *14.
(143) Baker, 834 F.3d at 548.
(144) Id. 145 Id.
(146) Pacific Operators Offshore v. Valladolid, 565 U.S. 207, 215 (2012).
(147) Jonathan D. Hodnette, Substantial Nexus: Harmony After Years of Situs and Status Discrepancies on the Spectrums of Outer Continental shelf Lands Act Compensation Claims, 10 LOY. MAR. L.J. 115 (2011).
(148) Baker v. Gulf Island Marine Fabricators, 834 F.3d 542, 549 (5th Cir. 2016).
(149) 33 U.S.C.A. [section] 903(a); see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 263 (1977).
(150) Baker v. Gulf Island Marine Fabricators. BRB No. 14-0344, 2015 WL 4873133, at *6 n.5 (July 14, 2015).
(151) Baker, 834 F.3d at 549.
(152) Hodnette, supra note 147, at 123-24.
(153) Baker. 834 F.3d at 549.
(154) Memorandum Ruling at 12, Mays v. Chevron Pipe Line Co. No. 6: 14-3098 (W.D. La. May 16, 2017) 2015 WL 11439145.
(153) 43 U.S.C.A. [section] 1333(b).
(156) Memorandum Ruling at 11, Mays v. Chevron Pipe Line Co., No. 6: 14-3098 (W.D. La. May 16, 2017).
(157) Barger v. Petroleum Helicopters, Inc., 692 F.2d 337, 340 (5th Cir. 1982).
(158) Pacific Operators Offshore v. Valladolid, 565 U.S. 207, 215 (2012).
(159) Decision and Order at 2. Flores v. MMR Constructors, Inc., BRB No. 16-0133 (Oct. 25, 2016) 2016 WL 6518831.
(162) Id. at 3.
(163) Id. at 4.
(164) Reinhalter, supra note 77.
(165) Letter Response of the Director, OWCP at 6-7, Flores v. MMR Constructors, Inc., BRB No. 16-0133 (June 22, 2016).
(166) The ALJ issued a decision and order on remand ordering compensation and fees to claimant. Flores has been through the ALJ appeals process, and was remanded to the ALJ. The ALJ has since ruled on remand in December 2017. It is unknown at the time of writing this Comment whether Flores' employer will appeal the ALJ's remand decision back to the BRB.
(167) In Baker, the holding by the Fifth Circuit that his employer "had no role in moving Big Foot to, installing Big Foot on, or operating Big Foot once placed on the OCS" was one of several reasons that Baker's injury did not satisfy the substantial-nexus test. Baker v. Gulf Island Marine Fabricators, 834 F.3d 542, 549 (5th Cir. 2016). Flores, whose employer was a subcontractor under a Master Contract with Chevron, turned on the same issue. See Reinhalter. supra note 77.
(168) "The term 'employer' means an employer any of whose employees are employed in such operations." 43 U.S.C.A. [section] 1333(b)(2) (emphasis added).
(169) Pacific Operators Offshore v. Valladolid, 565 U.S. 207, 215 (2012).
(170) Reinhalter, supra note 77 n. 10.
(171) Reinhalter, supra note 77.
(172) Reinhalter, supra note 77 n. 10.
(173) Decision and Order at 27, Flores v. MMR Constructors, Inc., 2014-LHC-1453 (Nov. 5, 2015) https://www.oali.dol.gov/DECIS10NS/ALJ/LHC/2Q14/FLORES HENRY T v MM R CONSTRUCTORS INC 2014LHC01453 (NOV 05 2015) 115257 CADEC SD.PDF.
(174) Boudreaux v. Owensby & Kritikos, Inc., BRB No. 15-0117, 49 BRBS 83 (2015), 2015 WL 9606397 at *1 (Dec. 21, 2015),
(175) Boudreaux, 2015 WL 9606397, at *2.
(176) Id. at *6.
(177) Reinhalter, supra note 77.
(178) Galligan, supra note 4, at 55.
(179) Reinhalter, supra note 77.
(180) Galligan, supra note 4, at 55.
(181) As of the writing of this Comment, Baker, Boudreaux, and Flores are the only published cases by the BRB for injured workers seeking benefits under the LHWCA/OCSLA. The fourth case, Grabert. remains unpublished by the BRB.
(182) 43 U.S.C. [section] 1331(k), (1) and (m) (emphasis added).
(183) Baker v. Dir., Office of Workers' Compensation Programs, 834 F.3d 542, 549 (5th Cir. 2016).
(184) See Decision and Order at n.2, Flores v. MMR Constructors, Inc., BRB No. 16-0133 (Oct. 25, 2016) 2016 WL 6518831.
(185) The court's holding is also based, albeit indirectly, on a situs requirement that the TLP already be out on the OCS and producing before coverage begins.
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|Author:||Pardue, William L.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Jan 1, 2019|
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